The Right to Vote: The Contested History of Democracy in the United States.

Author:Briffault, Richard
 
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THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES. By Alexander Keyssar. New York: Basic Books. 2000. Pp. xxiv, 467. $30.

  1. INTRODUCTION

    For those who believe the United States is a representative democracy with a government elected by the people, the events of late 2000 must have been more than a little disconcerting. In the election for our most important public office--our only truly national office (1)--the candidate who received the most popular votes was declared the loser while his second place opponent, who had received some 540,000 fewer votes, was the winner. (2) This result turned on the outcome in Florida, where approximately 150,000 ballots cast were found not to contain valid votes. Further, due to flaws in ballot design, thousands of other Florida ballots almost certainly failed to reflect the intentions of the voters who cast them. The number of uncounted ballots and votes arguably misrepresented by the butterfly ballot was far greater than the difference in votes between the first-place and second-place presidential candidates in the state. Studies later found that between four and six million votes were lost nationwide in the 2000 election, with 1.5 to 2 million votes lost due to faulty voting equipment and confusing ballots. Several states had higher rates of spoiled presidential ballots than Florida. (3)

    The 2000 election also generated two Supreme Court decisions with problematic implications for the right to vote in presidential elections. In Bush v. Palm Beach County Canvassing Board, (4) a unanimous Court indicated that the Florida Supreme Court lacked authority to protect the rights of voters by extending the period for conducting manual recounts of disputed presidential ballots. (5) Bush v. Gore (6) flatly declared that "[t]he individual citizen has no federal constitutional right to vote in presidential elections." Rather, "the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself" (7)--which, indeed, had been the plan of Florida's Republican legislature if the recount ordered by the state supreme court had resulted in a victory for Vice-President Gore. (8) Bush v. Gore held that the Florida Supreme Court's effort to require a statewide manual recount of the undervote ballots (9)--that is, those ballots cast by voters that the ballot-counting machinery determined contained no vote--was unconstitutional.

    Yet, Bush v. Gore may have also ushered in a dramatic extension of federal constitutional protection of the right to vote when the Court held that the Equal Protection Clause of the Fourteenth Amendment applies to the mechanics of election administration--a subject traditionally left to the states, and often delegated by the states to local governments. The Court found that the Florida recount order was constitutionally flawed because it failed to address the differences in standards used by local election officials in evaluating similarly marked ballots. (10)

    Neither the dismissal of the presidential popular vote and Florida's uncounted voters, nor the new federal constitutional review of local election administration--nor the combination of the two--would come as a surprise to a reader of Alexander Keyssar's (11) magisterial history of the right to vote in the United States. Published before the 2000 election, The Right to Vote's major themes are sharply reflected in the 2000 election's legal issues and their judicial resolution.

    Keyssar's central point, captured in his subtitle, is the deeply "contested" nature of the vote in the United States over more than two centuries. Keyssar directly challenges the "Whig interpretation" (12) of the history of the right to vote, with its "triumphalist presumption" (pp. xvii, 68-70) of a steady, inexorable, "unidirectional" (p. xviii) enlargement of the franchise. Instead, Keyssar demonstrates that the history of the suffrage has been marked by both forward and backward movement. Efforts to enlarge the polity and include previously excluded groups have been countered by doubts about democracy, resistance to suffrage expansion, and adoption of measures reducing the opportunity to vote. In the 1960s, however, a corner was apparently turned, and today nearly all adult citizens are entitled to vote. Even so, the earlier history continues to leave its mark on our political process.

    The 2000 election and Bush v. Gore nicely embody our conflicted heritage: the eighteenth century provisions that vest selection of the president in an Electoral College chosen according to rules set by state legislatures; the emergence of the presidential popular vote, along with administrative practices that often operate to impede the ability to vote; and the late twentieth century effort of the Supreme Court to promote the equal treatment of voters. The public debate over the recount also brought forward to the present some of the past conflicts over the scope of the franchise--with the rhetoric of "make every vote count" echoing earlier democratic calls to widen the vote, and the disdain manifested by some commentators and judges (13) for voters who failed to follow instructions on how to punch out their chads or were bewildered by the butterfly ballot recalling previous public assertions about the unfitness of some groups for the ballot.

    Although the central thrust of Keyssar's study is his persuasive challenge to the assumption of a progressive unfolding of voting rights, his book ends on a relatively upbeat note, emphasizing the broad availability of the franchise today. His concern is to show how hard it was and how "very long" (p. 316) it took to get to this point in our history. Examining this history will be the focus of Part II of this Review.

    Yet, although Keyssar's book is titled The Right to Vote, both his history and current legal doctrine raise questions about whether and to what extent voting is a right at all. Initially, as Keyssar demonstrates, voting was not seen as a right, but as a privilege to be provided to those thought best qualified to participate in governing the community. Even as the franchise was expanded, the vote continued to retain something of its foundation in government-bestowed privilege. Today, the vote comes closer to being a right of all members of the political community. Yet, as I will suggest in Part III, voting's status as a right is still contested. Some groups remain unenfranchised. There is no right to have decisions made by popular vote. Most importantly, even where voting is provided, a wide variety of political considerations and institutions--federalism, legislative districting, ballot access rules, the costs of administration, campaign finance law--operate to constrain voters' choices. Government still gets to shape the role of voting in the political system even if it has less control over who gets to vote. The significance of popular voting in our political process remains a matter of politics as much as it is a matter of rights.

  2. THE EVOLUTION OF THE FRANCHISE

    Keyssar divides the history of voting in America into four long periods: (i) the colonial era, when the most important qualification for voting was ownership of property; (ii) the first democratic ascendancy, running from the end of the eighteenth century to the eve of the Civil War, when property qualifications were largely eliminated and most adult white male citizens (and some noncitizens) were enfranchised; (iii) a "slow Thermidor" between the Civil War and the Second World War when various restrictions and procedures rolled back some of the gains of the antebellum period and to a considerable degree offset the suffrage expansions produced by the Fifteenth and Nineteenth Amendments, and (iv) a resurgence of democratic commitments after World War II, which led to a broader suffrage and significant federal legislative and judicial protection of the vote.

    1. Before the Revolution

      "[T]he lynchpin of both colonial and British suffrage regulations was the restriction of voting to adult men who owned property" (p. 5). Voting was not a natural right but a state-granted privilege--as the term "franchise" suggests (14)--and that privilege was extended only to those believed capable of providing sound governance for the polity. For people of that era, only property ownership could assure the capacity of the voter to decide questions of community governance. Property supplied independence; those without property were presumed to be economically dependent on and subservient to others. As a result, they would be subject to political manipulation and control by their economic patrons and social betters. (15) The propertyless, with the rest of the community, would be better off with virtual representation by the propertied. As Keyssar slyly notes, the concern that the propertyless lacked "will" and would simply be tools for a wealthy elite was sometimes joined with the opposite fear that the propertyless might have too much will and use their votes to advance their own interests (p. 11). But the dominant focus was on the connection between property and the capacity for independent judgment. The property test and other colonial era franchise rules (16) limited the vote to about sixty percent of adult white males, albeit with considerable variation from colony to colony, within colonies, and over time.

    2. The First Democratic Ascendancy

      Over the first half of the nineteenth century, property requirements were progressively relaxed and ultimately abolished. While many of the states initially replaced property ownership with a tax-payment requirement, by 1855 all but six states had dropped their insistence that voters pay taxes, and in several of the states that retained the tax-payment test the amount of tax required was quite minimal. As a result, the vast majority of the states enfranchised most of their adult white male residents.

      The Revolution and...

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